Newsletter: Vol. 55 January 9, 2015

An Insurance Industry Newsletter of Recent Issues and Opinions in Virginia Law

WHAT, ME WORRY? ANONYMOUS OR PSEUDONYM: CAN YOU IDENTIFY HIM?

You consider yourself a hard worker and a good employee, however, you are given one customer that you cannot satisfy no matter how hard you try. The customer is demanding and unreasonable and you cannot accommodate all of this person’s demands. After one particularly difficult day which brought a request that you were unable to fulfill, you are a home in the evening idly glancing at a social networking bulletin board on the internet when your name jumps out at you. You snap to attention as you read several anonymous postings and others by authors using pseudonyms: all of them are unflattering and insulting, maybe even defamatory. Immediately you want to know who would post such comments. Is it your unreasonable customer from this morning? Can you discover the person’s identity? An opinion from Judge Robert Smith of the Fairfax Circuit Court in the case of Geloo v. Doe, 2014 Va. Cir. LEXIS 36 (2014), illuminates the steps needed to determine if the identity of the author of an anonymous posting is discoverable.

In Geloo, the plaintiff, an attorney, filed a complaint against several John Doe defendants whose anonymous comments about her, her skill as a lawyer, and her advertising material on a regional message board Plaintiff felt were defamatory. Subsequent to filing the case, the plaintiff issued several subpoenas duces tecum to the internet service providers requesting account holder information for specified IP addresses. John Doe, by special appearance of counsel, filed a motion to quash the subpoenas.

In the opinion Judge Smith first analyzes a recent case from the Virginia Court of Appeals: Yelp Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678 (2014). In that case the Court of Appeals identified six elements which must be met before a court will order the identity of an anonymous author be revealed. Id., at 699-700. A plaintiff seeking to uncover the identity of an anonymous Internet speaker must show that:

1. He has given notice of the subpoena to the anonymous communicator via the Internet service provider;

2. (a) Communications posted by the anonymous communicator are or may be tortuous or illegal or (b) The plaintiff “has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit is filed,” Code §8.01-407.1 (A)(1)(a);

4. The identity of the anonymous communicator is important, is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to the claim or defense;

5. No motion challenging the viability of the lawsuit is pending; and

6. The entity to whom the subpoena is addressed likely has responsive information. Code §8.01- 407.1(A)(1)(a)-(e) and (3).

Id. The only element at issue in Geloo was element two, the content of the statement.
Judge Smith begins his discussion of element 2(a) by stating the definition of defamation. The Supreme Court has stated that defamation is “(1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005). In order to qualify as an “actionable statement” the statement must both be false and defamatory.” Id. If a statement is merely an opinion, it is usually not actionable because such statement cannot generally be proven true or false. Id., at 575-76. However, the question of whether a statement is a statement of opinion is a question of law for the court to decide. Id., at 576. Rhetorical hyperbole is also not defamatory speech. Cashion v. Smith, 286 Va. 327, 339 (2013). Whether a statement is hyperbole is also a question of law for the court. Id, at 340.

Finally, a finding of defamation also requires the requisite intent. Whether the allegedly defamed individual is a private or public figure plays a role in determining the level of intent. Jackson v. Hartig, 274 Va. 219, 228 (2007). In order to establish the requisite intent a private plaintiff (i.e. a person not ordinarily in the public light) must prove the following: (1) the publication was false; (2) the defendant knew it to be false, or believed it to be true but lacked reasonable grounds for that belief; or (3) the defendant was negligent in failing to investigate the facts upon which the statement was based. Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).

Judge Smith analyzes each of the alleged defamatory statements and finds each of them to be either rhetorical hyperbole or statements of opinion. Accordingly, he holds that each of the statements are not defamatory as a matter of law.

Judge Smith also analyzes whether the statements were defamation per se. Statements that are actionable per se must fall into one of a limited number of categories:

1. Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted or punished;

2. Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society;

3. Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or

4. Those which prejudice such person in his or her profession or trade.

Shupe v. Rose’s Stores, Inc., 213 Va. 374, 376 (1972). With respect to attorneys, statements that allege an attorney has behaved in an unethical or unprofessional manner and which tend to injure or disgrace him in his profession are actionable. Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 8 (1954). Judge Smith again analyzes each of the alleged defamatory statements and finds that none of them are defamatory per se in that none of them charge the plaintiff with criminal conduct, impute that she has any disease, or charge her with unethical or unprofessional conduct. Accordingly, she failed to meet element 2(a).

The Court then turns to element 2(b) and evaluates whether the plaintiff has a legitimate, good faith basis to support her claim that she was the victim of actionable conduct. Judge Smith notes that the plaintiff must put forth more evidence that simply signing the pleading in good faith. He looks to Virginia Code §8.01- 407.1 which provides the process by which an individual may subpoena information about anonymous online speakers. That section states that the party issuing the subpoena must attach supporting material sufficient to make six (6) factual showings. The first five showings mirror elements 2-6 of the Yelp! test above and the sixth showing relates to lawsuits pending in foreign jurisdictions. Thus, the party issuing the subpoena must attach material sufficient to establish the alleged defamatory comments are in fact defamatory.

In Yelp!, the party issuing the subpoena was able to make this showing by attaching screenshots of the comments. These screenshots coupled with a search of the party’s customer database were sufficient to establish a good faith belief that the authors of the comments were not customers and, therefore, their comments were defamatory. The authors of the comments in Yelp! also agreed to terms of service which required truthful reviews.

Judge Smith notes that this case is distinguishable from Yelp! in that the anonymous authors of the comments in this case did not agree to any terms of service requiring only statements of fact. Therefore, she is unable to make a good faith claim that the statements are defamatory. He also noted that the plaintiff did not attach any evidence of defamatory comments to her subpoenas. Because of these flaws he found that the plaintiff failed to meet element 2(b). As Plaintiff failed to meet either element 2(a) or 2(b), Judge Smith held that the plaintiff was not entitled to discover the anonymous authors’ identities and granted the motion to quash the subpoena.

As you can see, an individual seeking to discover the identity of the author of an anonymous online post must be able to cross certain hurdles before the court will permit the discovery. Unless you can show the court that the statements are defamatory or that you at least have a good faith basis to claim that those statements are defamatory, a judge will not reveal the identity of the author. However, if the statements cross the line from opinion and hyperbole into defamation or defamation per se, and if you have the supporting paperwork, there is a good chance you will be able to identify the author behind the pseudonym.

The following case summary involves insurance litigation issues. We have downloaded this summary directly from the Virginia Supreme Court website. We offer it to you without further legal analysis. However, if you would like a brief legal analysis or the full text of this case, please make your request by return e-mail. If you would like to discuss the ramifications of this decision, please call (804) 893-3854 for Ray; (804) 893-3855 for Kevin or (804) 893-3866 for Mark.

140216 Hyundai Motor Co. v. Duncan 01/08/2015 In a products liability action against a Korean automobile manufacturer brought on behalf of a 17-year-old accident victim and his parents, the circuit court erred in admitting the opinion testimony of the plaintiffs’ designated expert witness, who testified that the location of the side airbag sensor in the vehicle being driven by the minor when he sustained injuries in a single-vehicle accident rendered the vehicle unreasonably dangerous. Expert opinion must be premised upon assumptions that have a sufficient factual basis and take into account all relevant variables. The testimony of the expert in this case that the vehicle was unreasonably dangerous was premised upon an assumption that the vehicle’s side airbag would have deployed to protect the driver if it had been located in a different part of the vehicle, but the witness did no analysis and performed no calculations to support this assumption. Since the plaintiffs relied on this inadmissible testimony to establish that the vehicle was unreasonably dangerous, the defendants are entitled to judgment as a matter of law. The judgment of the circuit court is reversed and final judgment is entered in the automobile manufacturer's favor.

DISCLAIMER

This newsletter is intended to provide information of general interest to industry professionals. It is not intended to offer legal advice about specific situations or problems. Sinnott, Nuckols & Logan, P.C. does not intend to create an attorney-client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. You should consult a Sinnott Nuckols & Logan, P.C. attorney if you have a legal matter requiring attention. Nothing on or in this material creates an express or implied contract. If you have questions or comments regarding this newsletter, please contact: Kevin Logan (804) 893- 3855, klogan@snllaw.com